“The case-law that has addressed the meaning of the phrase “material change in circumstances” in the context of child and spousal support variation proceedings has also established that a change will only be considered “material” if it is significant and long-lasting (Brown v. Brown, 2010 NBCA 5 (CanLII), 2010 CarswellNB 30 (N.B.C.A.); Haisman v. Haisman, 1994 ABCA 249 (CanLII), 1994 CarswellAlta 179 (C.A.), leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.)). Trivial, insignificant or short-lived changes will not justify a variation (Haisman; Hickey v. Hickey (1999), 1999 CanLII 691 (SCC), 46 R.F.L. (4th) 1 (S.C.C.); Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.)). These principles apply equally to the threshold test in a custody and access variation proceeding. The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal (Gordon, at para. 64; Neger v. Dalfen, 2016 ONCJ 751 (O.C.J.) (CanLII)). Not every circumstance, event or mistake by a parent that detrimentally affects a child will be considered a material change in circumstances for the purposes of a variation application. As Gray, J. stated in Kerr v. Easson, 2013 ONSC 2486 (S.C.J.)(CanLII), at para. 62, aff’d 2014 ONCA 225 (C.A.) (CanLII), “[p]arents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances.”
In this case, the Applicant’s position is based largely on allegations that the Respondent has repeatedly breached numerous terms of the April 2, 2007 order. A party’s extensive non-compliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis if the breaches have a harmful effect on the child (Kerr; Chin Pang v. Chin Pang, 2013 ONSC 2564 (S.C.J.) (CanLII); Zaidi v. Qizilbash, 2014 ONSC 3652 (S.C.J.) (CanLII); Merkand v. Merkand, 2006 CarswellOnt 712 (C.A.); V.J.S. v. L.J.G. (2014), O.J. No. 2238 (S.C.J.)).
Both parties also base their custody and access claims to a large extent on the conflict that has developed between them since the April 2, 2007 order was made. The Ontario Court of Appeal has held that incidents of conflict between parties will not meet the threshold material change in circumstances test if the same level of conflict existed between the parties when the existing order was made (Litman v. Sherman, 2008 ONCA 485 (C.A.) (CanLII); Goldman v. Kudelya, 2017 ONCA 300 (C.A.) (CanLII)). However, the development of discord between the parties where none existed at the time of the order, or a significant increase in the level of the conflict since the order was made, resulting in an outright failure of the existing parenting plan, may meet the threshold test if it has had a negative impact on the child or has affected the parents’ ability to meet the child’s needs (Goldman).”